We all know that sexual harassment is pervasive in many workplaces, and too often, people allegedly committing harassment are protected from consequences. However, while all sexual harassment is wrong, not all sexual harassment qualifies as illegal.
Some behavior can be qualified as simple teasing that does not rise to the level of illegality. Offhand comments may not, by themselves, qualify. Isolated, non-serious incidents may not qualify.
The key questions are if the sexual harassment led to some employment action, and whether the harassing conduct was pervasive and serious.
Tangible employment actions
To be illegal, the first way that sexual harassment becomes illegal if it results in a tangible employment action. A TEA is just about any employment action, from refusing to hire, to firing and demotions. It could also be a promotion, if the promotion was given because of the sexual harassment.
A TEA could also be a reassignment to a less desirable location, workload or assignments or any change in employment. TEAs can also be benefit and compensation changes, among others.
Sexual harassment becomes illegal when it becomes sufficiently pervasive to create a hostile work environment. For example, if teasing is sexual in nature, only directed to one sex, persistent and ongoing.
These are fact-specific cases, and if you are experiencing this type of sexual harassment, contact a Massachusetts attorney to get your options.
Employer defenses to liability
If a TEA occurred as a result of sexual harassment, the employer has liability. Their only defense is likely a factual defense that the sexual harassment did not occur.
If no TEA occurred, then employer must prove three things to avoid liability. First, they can argue that the victim unreasonably failed to complain, delayed complaining to management or failed to reasonably avoid the harm itself.
Second, they must argue that they reasonably tried to prevent the sexual harassment in the first place. This is usually done through showing that there was an anti-harassment policy in place.
Finally, they must be able to prove that, when they were notified, they took prompt and appropriate action. This is done through proof of the investigation and mitigation. Of course, your attorney can rebut these arguments.